The terest, as well as such other evidence so in- | to a higher court, shall not be deemed a troduced or considered as the commission | waiver of any objection made during the may deem proper to certify. The commis- trial if such objection be properly made a sion shall, whenever an appeal is taken therefrom, file with the record in the case, and as a part thereof, a written statement of the reasons upon which the action appealed from was based, and such statement shall be read and considered by the Supreme Court, upon disposing of the appeal. The Supreme Court shall have jurisdiction on such appeal, to consider and determine the reasonableness and justness of the action of the commission appealed from, as well as any other matter arising under such appeal: Provided, however, that the action of the commission appealed from shall be regarded as prima facie just, reasonable and correct; but the court may, when it deems necessary in the interests of justice, remand to the commission any case pending on appeal, and require the same to be further investigated by the commission, and reported upon to the court (together with a certificate of such additional evidence as may be tendered before the commission by any party in interest), before the appeal is finally decided." tion 20, art. 9 (section 231, Bunn's Ed.; Snyder's Ed. p. 258; Gen. St. Okl. Ann. 1908, p. 113), also provides that "until otherwise provided by law, such appeal shall be taken in the manner in which appeals may be taken to the Supreme Court from the district courts, except that such an appeal shall be of right, and the Supreme Court may provide by rule for proceedings in the matter of appeals in any particular in which the existing rules of law are inapplicable." These excerpts were borrowed substantially from the Constitution of the state of Virginia of 1902. Section 156, art. 12, Va. Code Ann. 1904, pp. 254, 255. Sec For the purpose of determining the meaning of these provisions as they appear in the Oklahoma Constitution, we look to the appellate procedure then in force in Virginia. At that time an appeal prosecuted to the Supreme Court of Appeals of Virginia brought before that court for review the entire record. Gaines v. Merryman, 95 Va. 663, 29 S. E. 738. The record is nothing but the formal allegations of the pleadings on either side, the issue, impaneling of the jury, the verdict and judgment. Rulings of the court and action of the court as to the evidence and the proceedings must be made a part of the record by bill of exceptions. Magarity v. Shipman, 82 Va. 806, 7 S. E. 381. If the opinion of the trial judge is referred to in the decree deciding the cause as setting forth reasons for his decision, it becomes a part of the record. Todd v. Sykes, 97 Va. 143, 33 S. E. 517. Section 3385a Va. Code Ann. 1904, which was in force at the time of the adoption of the Virginia Constitution of 1902, provides that "the failure to make a motion for a new trial in any case in which an appeal, writ of error, or supersedeas lies part of the record." In section 22, supra, it sections (d), (e), (f), and (g) of section one | Territory at the time of the admission of hundred and fifty-six of the Constitution, as to appeals from the action of the commission, prescribing rates, charges, or classification of traffic, or affecting the train schedule of any transportation company, or requiring additional facilities, conveniences, or public service of any transportation or transmission company, or refusal to approve a suspending bond, or requiring additional security thereon or an increase thereof; but shall be construed to provide only for appeals from the final findings, orders, and judgments of the commission in cases not expressly provided for by the Constitution." In appeals in equity cases neither is a motion for a new trial required nor a bill of exceptions necessary to preserve and make the evidence heard and considered by the chancellor a part of the record. Prior to the enactment of section 1313a, par. 34, supra, the statute of limitation prescribed within which an appeal might be prosecuted was 12 months, but the General Assembly by said act reduced the same in at least certain cases to six months. Section 3474, 2 Va. Code 1904. There is no question of policy in this matter for this court; for courts determine laws, not policies. That is the function of the Legislature. This court has no authority by rule to change in the matter of appeals in any particular the provisions of any statutory law, unless the same are inapplicable. If they apply, it is our bounden duty to follow same. If such provisions are not wise and salutary, these are considerations to be addressed to the Legislature to amend or change same, but not to be considered by a judicial body when the terms of the same are plain. The provisions of section 22, supra, as originally adopted in Virginia, in relation to the appellate procedure then in force in that state, were intended to dispense with the necessity of a bill of exceptions in order to bring the evidence, or any part of it, up as a part of the record in any case. Section 4738, Wilson's Rev. & Ann. St. 1903, provides that "the plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original casemade as hereinafter provided, or a copy thereof." In the view hereinafter taken, it is not necessary to determine whether or not a party could appeal from an order of the Corporation Commission by means of a casemade, or whether or not when a case-made as certified to by the chairman under the seal of the commission comes within the rule prescribed in section 22, art. 9, supra. The presumption is that the provisions borrowed from the Virginia Constitution were inserted with a like intent and meaning in the Constitution of the state of Oklahoma. the state into the Union that an appeal might be taken to the Supreme Court of that territory by a transcript of the record, and the only way the evidence could become a part of such record was by means of a bill of exceptions. The facts upon which the action of the commission appealed from was based and which may be essential for the proper decision of the appeal, together with such of the evidence introduced before, or considered by, the commission as may be selected, specified, and required to be certified by any party in interest, as well as such other evidence so introduced or considered as the commission may deem proper to certify, and a written statement by the commission of the reasons upon which the action appealed from was based, certified to by the chairman of the commission under its seal, when filed with the record of the case, in connection therewith, constitute the complete record for an appeal to this court to have determined the reasonableness and justness of the action of the commission from which the appeal is prosecuted. It is provided in section 20, art. 9. supra, that, until otherwise provided by law, such appeal may be taken in the manner in which appeals are taken to the Supreme Court from the district courts. Section 4743, Wilson's Rev. & Ann. St. 1903, provides that "no proceeding for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of, or in case the person entitled to such proceeding be an infant, a person of unsound mind, or impris onment within one year as aforesaid, exclusive of the time of such disability." This is the only statute called to our attention limiting the time in which an appeal may be prosecuted; the limitation therein being one year after the rendition of the judgment or making of the final order. The petition for the certified record was presented by the plaintiff to the chairman of the Corporation Commission before the expiration of one year from the date of the making of the final order, and such time is not yet expired. In the case of Porter et al. v. Brook (decided by this court September 10, 1908), 97 Pac. 645, the court held under Act Cong. March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1907, p. 208), providing that appeals and writs of error shall be tak en from the United States courts in the Indian Territory to the United States Court of Appeals of said territory in the same manner that cases are taken by appeal or writ of error from the Circuit Court of the United States to the Circuit Court of Appeals of the Eighth Circuit, that the word "manner” included time, and an appeal must be taken within six months from the date of the en as required by the statute prescribing the time manner [italics ours] as is now provided by in which an appeal or writ of error might be the laws of the territory of Oklahoma for approsecuted from the Circuit Courts of the peals from probate court to the district court, United States to the Circuit Court of Appeals and in all cases appealed from the county of the Eighth Circuit. See, also, Lewis et al. v. court to the district court, the cause shall be Sittel (C. C. A., 8th Circuit) 165 Fed. 157. In tried de novo [italics ours] in the district the case of Prentis et al. v. Atlantic Coast Line court upon questions of both law and fact." Company (decided by the Supreme Court of It is evident that the term, "in the same manthe United States on November 30, 1908) 211 U. ner," is used in said sections as meaning S. 210, 29 Sup. Ct. 67, appealed from the Cir- "within the same time," for in said section 15 cuit Court of the United States for the East- it is further stipulated, "and by like proceedern District of Virginia, involving the con- ings as appeals are taken to the Supreme struction of the powers of the state Corpora- Court from judgments of the district court," tion Commission of that state, Mr. Justice and in said section 16 (Bunn's Ed. § 188) it Holmes, in delivering the opinion of the is further stipulated, "and in all cases apcourt, said: "There is yet another difficulty pealed from the county court to the district in applying to these cases the comity which court, the cause shall be tried de novo in the it is desirable if possible to apply. The Vir- district court upon questions of both law and ginia statute of April 15, 1903, enacted to fact," which is nothing but a restatement afcarry into effect the provision of the Constl-firmatively, specifically, and expressly of the tution, requires by section 34 certain, if not rule then in force in the territory of Oklahoall, appeals to be taken and perfected with-ma, which was otherwise extended to and rein six months from the date of the order. Pollard's Code Va. 1904, p. 726. It may be that when an appeal is taken to the Supreme Court of Appeals, this section will be held to apply and the appeal be declared to be too late. We express no opinion upon the matter, which is for the state tribunals to decide, but simply notice a possibility. If the present bills should be dismissed, and then that possible conclusion reached, injus-inated in that court; and such appellate tice might be done. As our decision does not go upon a denial of power to entertain the bills at the present stage, but upon our views as to what is the most proper and orderly course in cases of this sort when practicable, it seems to us that the bills should be retained for the present to await the result of the appeals if the companies see fit to take them. If the appeals are dismissed as brought too late, the companies will be entitled to decrees. If they are entertained and the orders of the commission affirmed, the bills may be dismissed without prejudice and filed again." mained in force by virtue of section 2 of the schedule (section 451, Bunn's Ed.; Snyder's Ed. p. 381) to the Constitution; for section 1807, Wilson's Rev. & Ann. St. 1903, provides that "when the appeal is on questions of fact, or on questions of both law and fact, the trial in the district court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully orig court has the same power to decide the questions of fact which the probate court or judge had, and it may in its discretion, as in suits in chancery, and with like effect, make an order for the trial by jury of any or all the material questions of fact arising upon the issues between the parties, and such order must state distinctly and plainly the questions of fact to be tried." It was clearly the policy and intention of the framers of the Constitution to expressly provide therein, as far as practicable, a system of procedure, as well as to prescribe the time for taking appeals. As before stated, we find in section 20, art. 9, supra, as was provided in sections 15, 16, art. 7, supra, "that said appeal shall be taken in the same manner [italics ours] in which appeals may be taken to the Supreme Court from the district court, except that such an appeal shall be of right [italics ours] and the Supreme Court may provide by rule for the proceedings in the matter of appeals in any particular in which the existing rules of law are inapplicable"; and then following in section 22 of the same artiin the same man-cle, provision is made specifically as to how the facts upon which the action appealed from is based and which may be essential for the proper decision of the appeal, together with such of the evidence introduced before or considered by the commission as may be selected, specified, and required to be certified by any party in interest, as well as such other evidence so introduced or considered as the commission may deem proper to certify. It is evident that the Supreme Court of the United States entertains some doubt as to whether the six-month statute or the twelve-month statute applied to appeals from the order of the commission fixing rates. In this state, as there is no six-month statute, there can be no question but that the twelvemonth statute applies. Section 15, art. 7 (section 187, Bunn's Ed.; Snyder's Ed. p. 221), Const. Okl., provides that "appeals and proceedings in error shall be taken from the judgments of the county courts direct to the Supreme Court, ner and by like proceedings [italics ours] as appeals are taken to the Supreme Court from the judgments of the district court"; and in section 16 of the same article it is provided that, "until otherwise provided by law, in all cases arising under the probate jurisdiction of the county court, appeals may be taken from the judgments of the county court to the district court of the county in the same and a written statement of the reasons upon; state, it is evident that in all such provisions which the action appealed from was based wherever the word "manner" is used it is may be filed with the record of the case, all meant either "time" or would include "time." of which are to constitute the complete rec- Said provision of section 22, art. 9, supra, ord for review in the Supreme Court. The appears to be mandatory, and to adopt any last provision, relating to the same subject other construction than that under such cerappearing in the body of an instrument, un- tificate the evidence and statement of facts der the rules of construction, is to be given thus certified to and the statement of the effect and not to be limited by what precedes, reasons upon which the action appealed from unless it is clear from the full context that was based, on being filed with the record in such was the intention. In this case the only the Supreme Court, thus becoming a part of way to give any effect whatever to the provi- the record, constitutes the complete record sions of section 22, art. 9, Const., is to hold to be reviewed on such appeal, would be to that it provides a comprehensive way in construe that such provision was of no effect which to get the evidence, statement of facts, whatever. To give any effect whatever to and the conclusions of the commission for said provision of section 22, art. 9, supra, review before the Supreme Court. Any oth- other than as heretofore pointed out, would er construction would make said excerpt of be tantamount to holding that, before such said section abortive and without effect: evidence and statement of facts thus certified The whole instrument or act is to to and the statement of the reasons upon be examined with a view of arriving at the which the action appealed from was based true intention of each part, and if any section could be considered on appeal in connection of the law be intricate, obscure, or doubtful, with the record proper in such case, it would the proper way to determine its true mean- be necessary for a motion for a new trial ing is by comparing it with other sections, to be filed and acted upon by the commission and finding out the sense of one clause by and preserved in the record by a bill of exthe words and obvious intent of another, and ceptions. And, in the event that a bill of exin making such comparison it is not to be ceptions was necessary to preserve the mosupposed that any words have been employed tion for a new trial as a part of the record without occasion, or without the intent that at the same time the evidence in like manner they should have effect as a part of the law. could be made a part of the record, and the Effect is to be given to the entire instrument conclusion would necessarily follow that the or act, and to every section and clause, and framers of the Constitution inserted a proviif different portions seem to conflict the courts sion in said section 22, art. 9, that is incommust harmonize them, if practicable, and plete and not required, and in no way necesmust lean in favor of the construction which sary. When we consider said section in the will render every word operative, rather than light of sections 15, 16, art. 7, supra, in view to one which will make some words idle and of the rules of construction heretofore renugatory. Statutes may not be revoked or ferred to, we conclude that such was not altered by construction when the words may their intention; that this section was inserthave their proper operation without it, but ed for a specific purpose, and it was not in the nature of things contradictions cannot thrown in in a haphazard way, without any stand together; and where there is an act definite purpose or intent. or provision which is general and applicable, actual or potential, to a multitude of sub-peal from any final order of the Corporation jects, and there is also another act or provi- Commission at any time within one year sion which is particular and applicable to one from the date the same is made; that in makof these subjects, and inconsistent with the ing the final order it is the duty of the comgeneral act, they are not necessarily so in- mission to enter of record a statement of all consistent that both cannot stand, though the facts upon which said order was made. contained in the same act, or though the gen- And, when application is made by any party eral law were an independent enactment. The to such action who is entitled to prosecute general act would operate, according to its an appeal therefrom to the chairman of said terms, on all the subjects embraced therein, commission to certify under its seal to this except the particular one which is the sub-court all the facts upon which the action apject of the special act, which would be deemed an exception, unless the terms of the latter, which were general, manifestly intended to exclude the exception. If the general and special provisions are in the same act, or passed on the same day in separate acts, or at the same session of the Legislature, the presumption is stronger that both are intended to operate." Trapp v. Wells, Fargo Exp. Co., 97 Pac. 1005. Examining our own statutes and the dif We conclude that any proper party may ap pealed from was based, and which may be essential for the proper decision of the appeal, together with such of the evidence introduced before, or considered by the commission as may be selected, specified and required to be certified by such party, or any other party in interest, as well as such other evidence so introduced or considered as the commission may deem proper to certify, and also make a written statement of the reasons upon which the action appealed from was of the Supreme Court to be filed with the record of the case, it is his duty to comply therewith. The order prayed for will be awarded, but not to be issued at this time. If the chairman of the Corporation Commission fails to make such certificate and such written statement, and transmit the same to the clerk of this court, as requested, upon advice of our conclusions, the plaintiff may renew its motion. All the Justices concur. (23 Okl. 246) prior to the 8th day of November, A. D. 1904, the then board of county commissioners of Woods county, Okl. T., having investigated the matter of the establishment of a high school near Helena in said county, and having exercised their discretion and judgment in the matter regarding the matter to be submitted to the voters of said county according to law, after resolution duly passed to give due and legal notice of the submission of the question as to whether or not the high school should be established at the town of Helena in said county to the qualified voters therein, as required by section 2, art. 1, c. 28, p. 187, of the Session Laws of said territory for 1901; that at said election held in said county on the 8th day of November, A. D. 1904, said proposition as to the establishment of Under act of the Legislature of the terri said high school at said place was submitted tory of Oklahoma, approved March 8, 1901 to the qualified voters of said county, and (Sess. Laws 1901, p. 187, c. 28, art. 1 [Wilson's was duly and legally voted upon by the electRev. & Ann. St. 1903, §§ 6219-6223]), a high ors, and that the returns of said election school was established in Woods county at Helena under the territory of Oklahoma, and have been duly canvassed by proper officers by section 8, art. 17 (section 337, Bunn's Ed.; and made to the then board of county comSnyder's Ed. p. 342), of the Constitution of missioners of Woods county in said territory, Oklahoma, there was detached from the terri-and the result of said election announced and tory formerly embraced by Woods county the county of Alfalfa, embracing the place where said high school was located. Held, that it became the high school of Alfalfa county, and that it was the duty of the board of county commissioners of said county to appoint trustees WILHITE v. MANSFIELD et al. thereof. [Ed. Note. For other cases, see Counties, Cent. Dig. §§ 12, 13; Dec. Dig. § 16.*] Hayes, J., dissenting. Application of E. S. Wilhite for a writ of mandamus to M. R. Mansfield and others. Writ awarded. made of record; that at said election there were cast, canvassed, and counted for the establishment of said high school for the county of Woods at Helena 2,509 legal votes, and against the establishment of said high school 2,140 votes, a majority of the votes of what is now Alfalfa county having been cast in favor of the establishment of said high school, and said question as to the establishment of said high school carried by a majority of 369 votes; that the result of said election was duly announced, and the high school established at the town of Helena in said counOn the 7th day of August, A. D. 1908, the ty, under and by virtue of the provisions of plaintiff, E. S. Wilhite, of Alfalfa county, for chapter 28, p. 187, of the Session Laws of the himself and all other resident taxpayers sim- territory of Oklahoma for the year 1901. He ilarly situated, instituted this action for per- further alleges that six qualified property emptory mandamus to compel M. R. Mans-owners were appointed a board of trustees, field, John Zimmerman, and J. C. McWil- and that they qualified and entered upon the liams, as the board of county commissioners discharge of such duties, procured a site for of Alfalfa county, to appoint trustees for the erection and construction of said high what is alleged to be the high school of Al-school building, and caused the building to be falfa county, situated at Helena therein. He constructed in which to conduct the school; alleges that ever since the 16th day of No- and purchased the supplies, materials, and vember, A. D. 1907, he has been an actual equipment for said school; that ever since resident and taxpayer of Alfalfa county, Okl., said building was constructed and said school having a son and daughter who are entitled furnished with the necessary equipment it to attend the county high school at Helena has been a going and flourishing institution in said county, and that prior to the 16th located in the town of Helena; that saië. day of November, A. D. 1907, he has been an board of trustees of said high school contract actual resident and taxpayer in the then ed for an expenditure of about $20,000, which county of Woods, territory of Oklahoma, for was a reasonable, legal, and proper expendimore than four years; that prior to Novem- ture; that since the 16th day of November, ber 16, A. D. 1907, the territory embracing Al- A. D. 1907, vacancies have occurred in the offalfa county was a part and parcel of Woods fice of the board of trustees of said school, county, Okl. T., and that, under and by virtue and that at the present time there is no board of the provisions of the Constitution of Okla- of trustees authorized to act as such for said homa, Alfalfa county embraces territory high school, and that it is necessary that a which prior to November 16, A. D. 1907, was board of trustees for said school be appointed included in Woods county, Okl. T.; that immediately in order that said board may For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |